What is Equal Protection?
1. Derived from Declaration of Independence
“We hold these truths … all men are created equal”
2. Meaning: state and local government cannot draw
unreasonable distinctions between different groups of
people
– 5th amendment : Due Process Clause
– 14th Amendment: “Equal Protection Clause”
3. Fundamental Freedoms
– Explicitly guaranteed in the Constitution
– Close Scrutiny/state laws in violation are unconstitutional
Who Needs Protection?
• Strict scrutiny : Reverses the normal presumption of
constitutionality. The law is unconstitutional unless it is
"narrowly tailored" to serve a "compelling" government
interest. In addition, there cannot be a "less restrictive"
alternative available to achieve that compelling interest.
– law categorizes on the basis of race, religion or national origin
• Intermediate scrutiny : the law is unconstitutional unless it is
"substantially related" to an "important" government interest
and that the classification is at least substantially related to
serving that interest. Note that in past decisions "sex"
generally has meant gender.
– law categorizes on the basis of sex
• Rational-basis test : the law is constitutional so long as it is
"reasonably related" to a "legitimate" government interest.
– law categorizes on some other basis: age, Income, hardship, etc
Proving Intent to Discriminate
• Constitutional vs. Legal Rights
– Bill of Rights provides protection and limits
– Services a construction of Congress
• One must prove that intent to discriminate
motivated state action
– “equal laws, not equal results”
Race as a Suspect Classification
• Plessy v. Ferguson
(1896) - supported state
actions that segregated
the races.
• Brown v. Board of
Education (1954) established race as a
suspect classification,
struck down all laws
based on race
Affirmative Action
• Policies that encourage institutions to take
positive steps to correct the effects of past
discrimination
• Regents of Univ. of California v. Bakke (1978) –
race can be considered but can’t use quotas
– government can make laws that eliminate prior
inequities However, must be a compelling interest to
relieve a specific case of discrimination
• Grutter v. Bollinger and Gratz v. Bollinger (2003)
– recognized use by law school of “plus factor” but
cannot give extra points to undergrad applicants
Is Gender Suspect?
• Laws discriminated against
women on the pretext of
protection
– The women’s movement has
objected to these laws as
paternalistic
• Reed v. Reed (1971) –
banned classification that
didn’t meet “important
gov’t objectives”
– The federal courts do retain
part of the protective
movement The Supreme
Court has struck down many
laws based on sex
Gay Rights
• Defense of Marriage Act (1996)
– Recognizes marriage as between one man and one woman
• Romar v. Evans (1996)
– Invalidated CO law seeking to eliminate laws protecting homosexuals
from discrimination
• McVeigh v. Cohen (1998)
– Navy violated privacy regarding AOL profile
• Lawrence v. Texas (2003)
– Invalidated state sodomy laws
• Recent policy changes: Don’t Ask Don’t Tell and
California Proposition 8
Age and Disability Discrimination
• Age Discrimination in Employment Act
– Passed in 1967
– Prohibits age discrimination unless a bona fide
qualification
• Americans with Disabilities Act (ADA)
– Passed in 1990; requires “reasonable accommodations” be
made unless they create “undue hardship”
• Individuals with Disabilities in Education Act (IDEA)
– Guarantee of free and appropriate public education (FAPE)
in least restrictive environment (LRE)
– Due Process guarantees for parents and students